Department sets official policy — when it comes to going to the bathroom, transgender kids are on their own

A spokesperson for the Department of Education has officially said they will not investigate or take action on any complaints filed by transgender students who claim they’ve been barred from using the bathroom that aligns with their gender identity.

The Department has yet to formally announce the position. News of the policy came from department spokesperson Liz Hill, who told Buzzfeed News, “Title IX prohibits discrimination on the basis of sex, not gender identity.”

While Hill suggested that other discrimination complaints filed by transgender students may be investigated by the DOE, this administration won’t investigate bathroom claims because they refuse to see that forcing a child to use a bathroom that doesn’t align with their gender identify is discrimination.

“Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” Hill said. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”

Title IX was enacted in 1972. It prohibits federally funded educational institutions from discriminating against students or employees based on sex. Because Title IX and the law regarding separate restrooms offer no clear definition of the term “sex”, it’s been left to the courts and the current administration to determine whether the meaning of the word includes a person’s gender identify in addition to their sex assigned at birth.

In May 2016 President Obama released a guidance letter saying Title IX protects the rights of transgender students to use the bathroom and school facilities that align with their gender identity.

The current administration sent out a letter revoking the Obama administration guidelines on Title IX in February of last year, but failed to clarify its position, instead saying it would “more completely consider the legal issues involved.”

Advertisement

In interpreting Title IX, Federal appeal courts in both the 6th and 7th circuit have struck down school bathroom policies that prohibited transgender students from using the bathroom that aligned with their gender identify. In both instances, the court found the students were likely to succeed at trial under the protection of Title IX.

As recently as May 2017, in Whitaker v. Kenosha Unified School District, a unanimous three-judge panel ruled a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.”

Now, with the announcement of the Board of Education’s new policy to ignore reports of discrimination from students, it appears that transgender students from any state — even those who live in a Federal district where there’s been a court decision in favor of transgender students seeking to use the bathroom of their choice, can no longer count on the Department of Education to investigate a complaint regarding bathroom discrimination.

This latest Trump administration policy is a slap in the face. Not just for transgender youth and the LGBTQ community, but to for anyone who believes in equality, civil rights, and that everyone deserves the right to pee in a place where they feel comfortable.

The courts have already held that discriminating against transgender students violates Title IX.

The Trump administration may abdicate their obligation to trans students and their families, but we at the ACLU will not. https://t.co/6xEGJm5WYB

“In the last year, the Trump administration has rolled back critical protections for the LGBTQ community, and today’s decision by Betsy DeVos is no different,” said LGBTQ Media Director Lucas Acosta. “By refusing to take action on complaints filed by transgender students denied the right to use bathrooms that match their gender identities, DeVos is willingly undermining Title IX and turning her back on individuals facing institutional discrimination.”